A guide: Pine Creek's instream flow
Part One
by Cat Urbigkit

Those who read the legal advertising in the Sublette Examiner will notice a series of notices this fall and winter discussing water right applications before several state agencies.

Several of the applications before two state agencies all have one desired outcome: the establishment of an instream flow for an 8-mile segment of Pine Creek. The State Board of Control will hear one application in October, while the other two applications will be subject to a separate public hearing, hosted by the State Engineer's Office, later this winter.

This article takes a look at the three applications and explains the process for each as they work their way through the state bureaucracy. The second article in this series will be printed in the Oct. 3 Sublette Examiner and will examine the Wyoming Game and Fish Department's (WG&F) plans for its instream flow program. The final installment of the three-part series will examine the issue of the public trust doctrine and its implications on instream flow. The final article will be printed in the Oct. 10 Sublette Examiner.

In April 1988, the Highland Irrigation District petitioned the State Board of Control to have the Town of Pinedale's storage rights in Fremont Lake abandoned due to lack of making beneficial use of the water resource.

This action would have affected the town's 9,844-acre-feet of storage rights with a 1931 priority date, which the irrigation district alleged hadn't been put to beneficial use for at least five consecutive years. The town's storage right is for "fish, irrigation, industrial, manufacturing, municipal, recreational and power purposes."

The irrigation district petition applied for the town's appropriation to make beneficial use of the water "to preclude the possibility of said stored water leaving the geographic area in which it is stored, thereby depriving said area of the essential use of said water in years when there is inadequate precipitation to maintain the economic stability of the local area, and further to protect said water for future municipal use with minimal future impact upon local agricultural needs."

The irrigation district voluntarily withdrew its petition for abandonment of the town's storage right in August 1988 when the town was granted its application for a five-year extension to make beneficial use of the water right. The Board of Control granted a subsequent petition for an additional five-year extension of time for beneficial use in August 1993.

When the petition for yet another five-year extension was filed in July 1998, the town claimed it had been making beneficial use of a significant part of the stored water.

"Since the granting of the extension in August 1993, the petitioner has cooperated with the local ditch companies and irrigation districts to make beneficial use of a portion of the storage rights for irrigation purposes, and has apportioned and authorized release of 5,000 acre-feet annually to be divided among the Highland Irrigation Ditch, Fremont Ditch, Colorado Ditch, Hansen-Luce Ditch, Lee Ditch and McDowell Ditch," the town's petition stated. The petition also noted that the town's remaining 4,844 acre-feet of storage was put to beneficial use "in such amounts as have been necessary for municipal and recreational/fisheries uses."

Last December, the Town of Pinedale entered into a two-year lease agreement with the Wyoming Game and Fish Department wherein the town proposed to lease 4,800-acre-feet of storage rights to the state wildlife agency for an instream flow for Pine Creek. WG&F then requested that 30 cubic feet per second (cfs) of water be delivered "to the segment of Pine Creek extending from the outlet of Fremont Lake Dam downstream to the confluence of Pine Creek with the New Fork River at such times and in such amounts throughout the entire year as (WG&F) deems necessary to maintain the existing stream fishery."

Wyoming State Engineer Pat Tyrrell denied WG&F's temporary use application for an instream flow, noting that it procedurally didn't comply with state law. Tyrrell also objected to the use of the temporary use statute rather than the instream flow law.

In an interview last November, Pinedale Mayor Rose Skinner explained that when there is a shortage of water in the area, "we can't get water down the creek," even though the town owns about half the water rights in Fremont Lake. She said the uneven flows are wearing away the banks of the creek and making for unhappy anglers and townspeople.

Skinner pointed out that without a set designation for where the water should go, there is no way the town can request the creek to be regulated, forcing irrigators to let the water flow past their headgates. The town proposed to have stream gauges installed as well, proving where the water is being used or diverted.

Since these earlier efforts at getting an instream flow on Pine Creek failed, another tactic was chosen.

WG&F itself owns 952 acre-feet of stored water in Fremont Lake with the stated purpose of "fish propagation." In March, WG&F filed an application with the State Board of Control to make changes to this water right: deleting the restrictive language regarding regulation and protection of the water right; allowing the water to be released at any time during the year as needed rather than during the period of Oct. 1 through May 30.

According to the WG&F application: "The effect of this amendment is to permit water to be used when needed for the beneficial use of fishery protection." If the change is approved as requested, the agency will be able to call for water releases throughout the year and will be able to request that Pine Creek fall under state regulation during shortages. Presently, the use of WG&F storage is restricted to the Fremont Lake fishery during the summertime, and only during the wintertime for the Pine Creek fishery. The priority date for this 1931 water right would remain intact.

This application will be subject to a public hearing at 8 a.m. Wednesday, Oct. 16, at the Sublette County Library in Pinedale. The hearing will be conducted by the State Board of Control, the five-member board that adjudicates new water rights and proposals to change existing water rights.

But this application is only one piece of a larger attempt to get an instream flow for Pine Creek. WG&F has also filed two applications with the State Engineer's Office (SEO). One application is for its stored water to be used as an instream flow. This application, called a "secondary application," seeks to use the 952 acre-feet of WG&F stored water for an instream flow, as well as use the 4,800 acre-feet the town has agreed to lease to the agency. But the Board of Control, after the Oct. 16 hearing, would have to approve the requested changes to WG&F's stored water right in order for the State Engineer's Office to allow the WG&F to use its water right for the instream flow.

According to the secondary application, water will be delivered to maintain up to 40 cfs throughout the 8.18-mile reach "at all times of year on an as-requested basis by WG&F." This is an additional 10 cfs over the amount requested in the application made just a few months earlier and rejected by State Engineer Tyrrell. The instream flow statute requires, "Waters used for the purpose of providing instream flows ... shall be the minimum flow necessary to establish or maintain fisheries." The Wyoming Water Development office remarked that the 40 cfs applied for in the WG&F permit application "are not necessarily the minimum flows as described (in state statute) and if the state engineer approves the application, the process should not be construed to serve as establishing a precedent by establishing flow regimes greater than those described in statute."

The WG&F permit application also stated, "Actual calls for water will be based on the availability of storage, flow patterns in the stream, and the fishery goals of the (Town of Pinedale and WG&F)." A "call" on water is a request for state officials to regulate water use in an area, in this case limiting senior water users to their statutory water right amounts in order to meet the amount needed for the instream flow.

If approved by Tyrrell, this secondary application would be Wyoming's first instream flow right that uses stored water. Although the state instream flow law allows such an action, to date it has never been done.

The second application before the SEO is WG&F's application for a direct-flow water right for an instream flow for Pine Creek. The application states: "As provided by (state statute) natural direct flows up to 40 cfs are requested whenever they are naturally available at all times during the year to improve the fishery in Pine Creek. This water right will function in tandem with secondary water rights owned by WG&F and the Town of Pinedale in Fremont Lake for instream flow purposes.

"Establishing the authority to call for all unappropriated direct flows up to 40 cfs for instream flow will minimize the demand on storage rights and allow the WG&F and the Town of Pinedale to make maximum beneficial use of all waters under their control and improve opportunities for both parties to consider using their storage water for purposes other than instream flow if and when doing so serves their individual or collective interests," the application stated.

If approved by SEO, this direct flow right would have a priority date of the date the application was received and recorded by SEO. There are 37 permits holding senior dates in this 8-mile stretch proposed for an instream flow. While the WG&F's direct-flow permit, if approved, would be the junior water right, the agency would have the authority to call for water regulation, limiting the senior users to their statutory right of one or two cfs per 70 acres.

On the same subject, Tyrrell was quoted in the Wyoming Water Users newsletter this summer as stating: "Absent regulation, if the water users higher in the system are able to divert and use more than 1 cfs per 70 acres (to take advantage of the hydrograph peak), this means the possibility exists they could be cut back sooner than they would have, had the instream flow not existed."

To approve an instream-flow permit application, the state engineer must determine that no injury will occur to other water rights and that the instream flow will not impair or diminish the rights of any other appropriator in Wyoming. There is no provision in state law for abandonment of an instream flow right.